tag:blogger.com,1999:blog-15602189.post8361204368716189786..comments2023-09-21T16:17:51.838+05:30Comments on Law and Other Things: Myriad responses to the Aravali Golf Club ruling: Not earthshaking, but significantAnonymoushttp://www.blogger.com/profile/09348738084817273397noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-15602189.post-61389213327981439572007-12-14T22:29:00.000+05:302007-12-14T22:29:00.000+05:30Beginning slightly off the immediate point, how tr...Beginning slightly off the immediate point, how true is it that obiter observations are not binding? There are SC cases where even the obiter of Supreme Court decisions has been held binding on High Courts. Does a different rule apply to the Supreme Court? If so, what is the rationale? It is interesting to note here Nani Palkhivala's views (and I think Seervai's also) that a judgment consists of 3 aspects - ratio, obiter and other observations. The distinction between the 2nd and the 3rd is not very clear to me, but it appears that obiter includes those observations not necessary for the decision, but nonetheless in some manner connected with the issue at hand.<BR/><BR/>More importantly, turning to the issue of judicial activism, is "law making" necessarily outside the judiciary's function (as opposed to the judicial function)? The traditional argument is, of course, lack of accountability - can it be argued, however, that an adversorial process tries to guarantee that the ultimate decision will be after due deliberation, and therefore the fact that the decision-maker is not accountable is irrelevant?Mihir Naniwadekarhttps://www.blogger.com/profile/10774588998184976540noreply@blogger.com